Hampton innocence case the second in five years

The case of a Hampton man wrongly convicted of sexual assault but who cannot be released from prison again raises concern about the ability of the state’s judicial system to correct mistakes.

Hampton Circuit Court Judge Randolph West apparently wrongly believed last Friday he could free Jonathan C. Montgomery, convicted in 2009 of sexual assault in a case in which the accuser — now charged with perjury — has admitted making up the accusation.

In Thompson’s case, outlined in the Richmond Times-Dispatch three years ago, the attorney general’s office did not step in. But last week it did, stopping Montgomery’s release and citing the 21-day rule.

In many states, newly discovered evidence of innocence can be taken years later to the same court in which inmates were convicted so their names can be cleared — as has been done at least twice in Hampton.

But in Virginia, circuit judges lose jurisdiction in cases 21 days after they become final and cannot consider new evidence of innocence. The only remedy is a pardon from the governor, or through writs of actual innocence granted in the courts.

Montgomery’s case is “a tragedy,” Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli, said on Monday. “The attorney general is very concerned about it; however, Virginia law will not allow the release.”

On Tuesday, Gottstein said that “neither the commonwealth’s attorney nor the public defender” gave the attorney general’s office any advanced notice of the court proceeding that occurred in Hampton on Friday.

He said that the attorney general’s office was unable to contact the Hampton officials until Tuesday.

“We are currently investigating the recantation and the circumstances surrounding it as quickly as we can. Without those facts in hand, we could not advise anyone that relief be granted,” Gottstein said.

In 2009, the General Assembly readily, if unknowingly, overlooked the 21-day rule in Thompson’s case and unanimously awarded him $259,000 in compensation for his wrongful conviction.

The Virginia Supreme Court can grant a writ of actual innocence in cases in which new DNA evidence proves innocence, and the Virginia Court of Appeals can grant writs in non-DNA cases such as Montgomery’s and Thompson’s.

Gottstein said Monday that his office would work with Montgomery in seeking a writ of actual innocence and to expedite his release. But a writ can take months, and Montgomery would not be able to count on exoneration.

Betty Layne DesPortes, a Richmond-area criminal-defense lawyer, said, “The attorney general’s office is right, the Hampton court shouldn’t have done what they are doing. They’re trying to do the right thing but they’re doing it the wrong way.

“Everybody should be running right to Governor Bob McDonnell and saying, ‘Release him, he’s innocent.’ And the attorney general should be standing right next to his defense lawyer,” she said.

Montgomery’s lawyer, Ben Pavek, said Tuesday that they “are exploring any other options that we can use and would welcome the attorney general’s involvement to explore any other options.”

Without identifying the parties, Pavek said, “I am aware of two cases unrelated to Montgomery’s where the circuit court in Hampton vacated a conviction years after the sentence and there was no appellate intervention.”

Pavek said he believes the 21-day rule does not apply if a conviction was incurred as a result of fraud.

Hampton Commonwealth’s Attorney Anton Bell agrees with Pavek that the judge has the power to free Montgomery. Citing the previous two Hampton cases, he noted that Cuccinelli was not the attorney general at the time.

Montgomery, 26, an inmate at the Greensville Correctional Center, is serving a sentence of seven years and six months for three sexual assault convictions stemming from the woman’s testimony.

The woman said she lied in her testimony in Montgomery’s 2008 trial. She told the court she was sexually assaulted when she was 10 by Montgomery, who was then 14.

Pavek said the commonwealth’s attorney’s office agreed the convictions should be tossed out and last Friday West vacated them and ordered Montgomery freed.

Bell said he not only believes the woman’s recantation, he has charged her with perjury.

The Virginia Department of Corrections did not comply with West’s order Friday, citing the attorney general’s position that the order was invalid. “Because this is a legal matter we cannot comment further,” said a department spokesman.

Pavek said he has filed a request that the prison system be held in contempt for not complying with the order to free Montgomery.